Apple Takes Bite From Data Security False Ad Suit

Advertising Law

Apple scored a victory in a data security suit when a California federal court judge denied a plaintiff’s motion to certify a class of consumers asserting false advertising claims.

Marc Opperman alleged that Apple deceived consumers by touting the security of iPhones and other devices (with statements such as “We have created strong privacy protections for our customers,” “Privacy and trust are vitally important” and “Protecting customer privacy is a key feature of all App Store transactions”), while simultaneously permitting apps to download users’ contact data without their consent. The plaintiff sought to certify a class of consumers who purchased the various devices over a four-year period.

But U.S. District Court Judge Jon S. Tigar disagreed with Opperman that Apple conducted a “pervasive” marketing campaign promoting its data security, and concluded that he failed to establish the required element of predominance under Federal Rule of Civil Procedure 23(b)(3).

The court could not confidently say that the putative class members were actually exposed to the same common alleged misrepresentations, and the plaintiff “failed to demonstrate that Apple’s privacy-related marketing was sufficiently extensive to support an inference of class-wide exposure.”

“[W]hile class members may have been exposed to Apple’s advertising generally, Plaintiffs have not shown that class members saw, heard, or relied upon representations about the specific security features … at issue in the case,” Judge Tigar wrote. “The Court agrees with Apple that with regard to privacy … Plaintiffs ‘offer virtually nothing as far as true Apple advertising (e.g., specific television spots, internet display advertising, print advertising, etc.)’ and ‘provide no evidence of consumer reach with such advertising (e.g., broadcast frequency, audience measurement, publication circulation, or number of impressions).’”

Instead, the plaintiff offered just “a handful of statements per year, contained in ‘buzz marketing’ materials, press releases, statements in investor calls, and similar materials,” the court said.

The court also found that the plaintiff was unable to adequately define damages for the class members. Opperman proposed conducting conjoint analysis surveys to calculate the market value of the security features Apple promised and the sums that would provide restitution to class members.

But the proposed survey presented several problems, the judge found, from failing to comport with the plaintiff’s theory of liability to overstating the damages awarded to the class by measuring the value of “privacy” to consumers generally and not the specific concepts at issue in the case.

Judge Tigar denied the motion for class certification for the false advertising claims.

To read the order in Opperman v. Kong Technologies, Inc., click here.

Why it matters: The decision offers a valuable lesson regarding the elements required to certify a class of consumers in a false advertising lawsuit, particularly with regard to the element of commonality and classwide exposure to the challenged ads. “It means little that an objective, reasonable consumer would have found the alleged misrepresentations material if none of the class members actually saw, read, or were otherwise exposed to those misrepresentations,” the court noted.